Opinion 19-34

July 31, 2019

Dear :

         This responds to your inquiry (19-34) asking, since your spouse has been diagnosed with dementia, whether you may ethically undertake, as a Medicaid planning tool, “the process of spousal refusal set out in the Social Services Law, in which [you] would be called upon to refuse to make [your] resources and income available for [your spouse]’s care.” You have advised that if you exercise refusal, the county would gain standing to “challenge [this] refusal in a Family Court proceeding and seek contribution to the cost of care,” which is also consistent with Social Services Law.

         We have previously advised that the rules governing judicial conduct do not preclude a judge from exercising the same rights to protect or advance his/her direct, personal interests as other similarly situated individuals who are not judges (see Opinions 17-77; 13-38; and 12-96). Here, you may take the same steps “to protect or assert” your personal rights with respect to your spouse as do other, similarly situated husbands/wives.

         We have advised, however, that a judge should exercise care not to use or invoke his/her judicial title or status in the exercise of these rights (see Opinion 17-77; 13-38; and 12-96).

         Enclosed for your convenience, are Opinions 17-77;13–38; and 12-96, which address this issue.

                                                 Very truly yours,

                                                 George D. Marlow, Assoc Justice                                                                     Appellate Div., First Dept. (Ret)

                                                 Committee Co-Chair

                                                 Hon. Margaret T. Walsh

                                                 Supreme Court Justice

                                                 Committee Co-Chair

Encs.